Divorce pettion
rakesh
(Querist) 19 August 2012
This query is : Resolved
Dear sir,
Iam working on a moot problem which is based on family law. in this particular case the husband and the wife was married according to the provisions of Hindu Marriage Act. Both had frequent fights as the wife was a party animal and used to drink a lot and comes home late such issues were raising between both she even had filed a FIR on the husband and his relatives for mental cruelty but she had withdraw ed it apologizing to the police then the husband filed a divorce petition in family court on the ground of mental cruelty. but the petition was rejected when wife showed interest in the marriage. Meanwhile he came to know that she was pregnant and had a appointment with a doctor to abort the child. husband went to Bombay High court for injunction against abortion and challenged the constitutional validity of Medical Termination of Pregnancy Act and asked for the custody of the child after birth and in the same proceeding he also filed a petition for divorce.
In this case jurisdiction is the biggest issue as constitutional validity of MTP would be filed under art 226 of Constitution and in the same proceeding he also filed divorce which is and appeal against the impugned order of the family court. As High court has the inherent power to conjunct cases which would be pertaining to the same party. But in this case whether high court has the power to conjunct cases of two different nature an original application and and appeal in the same proceeding.
Please help me with this case.
Devajyoti Barman
(Expert) 19 August 2012
The prayer for Divorce and the child custody in the Writ case is misconceived and hence would not be maintainable.
The husband could have filed divorce suit afresh and sought injunction therein itself. There was no need to go to High Court.
rakesh
(Querist) 19 August 2012
Thanks for your valuable comment sir, but sir this is the way the moot problem has been framed and we are expected to proceed with the final arguments but the issue is in the jurisdiction we have to assume that the above mentioned facts have been proved and have to argue the case form the side of husband. Now how shall i proceed
